How to Open and Execute a Probate Case in Pennsylvania

When people pass away, oftentimes they leave behind assets (as well as debt). Houses, cars, cash, securities, possessions, and liabilities need to be dealt with. However, finalizing the financial affairs of a deceased loved one is not as simple as finding their checkbook, paying bills, and calling a real estate agent to put a house on the market. You can’t just begin distributing — or pocketing — a deceased person’s possessions.

Probate is what we call the legal process of tying up the financial affairs of someone who has passed away. In order to legally and effectively probate an estate, proper legal procedures must be followed from the beginning. If they aren’t, you risk potential lawsuits and complications like title issues and the invalidation of transactions.

Probate doesn’t have to be complicated. Managing these after-death affairs can be straightforward with the right knowledge, preparation, and counsel. Here is primer on everything you need to know about the probate process in Philadelphia and Pennsylvania at large.

Who Distributes the Assets of an Estate?

When someone passes away, all of their assets and liabilities become their estate. Someone needs to be responsible for managing the estate by paying off debts, distributing remaining assets to heirs, signing contracts, and communicating with creditors.

Dying with or without a will is the difference between dying “testate” or “intestate.” If the deceased person left a will, it may have named someone who would be responsible for distributing assets. That person is called the executor (or executrix). If there was no will, the person who will manage the estate is called the administrator (or administratrix) here in Pennsylvania.

Preparation for the Probate Process

There are several documents that an executor or would-be administrator needs to gather to begin the probate process.

• An original copy of a death certificate. Pennsylvania has one authorized vendor that issues death certificates, which can be ordered by mail, online, or in person at the office of vital records (also called the office of vital statistics, depending on which county you are in).
• The will — preferably, the original, signed, witnessed and notarized copy — if there is one.
• Valid ID.
• An estimate of the value of the estate.
• Knowledge of the deceased’s family tree.
• Payment for probate fees.

It can be helpful to engage an attorney early on. They can ensure all documentation is in order. As things progress, it will become increasingly clear how important an experienced attorney is, especially if complications or disputes surface.

With everything gathered together, it’s time to contact the local county office that is responsible for probate. In Philadelphia, this is the Register of Wills, Room 180 in City Hall.

Receiving Authority to Administer an Estate as Executor

Bring the will and paperwork to your meeting at the Register of Wills, where the officer will review your paperwork. Or if you have an attorney, they would have already sent the documentation, and the office will be ready for you.

This is where it becomes very clear that having a lawyer is essential to avoid mistakes. You will need to create a list of heirs and file a petition for probate, which will open the probate case. If you miss a potential heir, you might open yourself up to claims or lawsuits down the line.

The officer will swear you in as the executor of the will, and issue the letters testamentary that give you the legal authority, as executor, to sell or transfer property, access bank accounts, pay bills or credit cards, and negotiate with creditors.

What Happens When There is No Will

When there is no will, it means the deceased person died intestate, never naming anyone to handle their financial affairs after death. It’s now up to the court to decide who will have the responsibility of administering the estate.

In most cases, the Register of Wills wants to appoint a spouse or child of the deceased as administrator. Anyone who wants to become the administrator must file a petition for grant of letters of administration with the Register of Wills. As above, you will make an appointment and bring the necessary paperwork.

If you are the only heir, you will almost certainly be appointed as administrator. But if there are other heirs, they all must agree to either renounce to a sole administrator, or to act together as co-administrators. If they cannot agree, they can file a petition for a hearing and the Orphan’s Court will make a decision as to who should be appointed.

What Happens When Heirs Don’t Agree (or Get Along)

There’s a misconception out there that being the administrator of an estate is some kind of windfall. Actually, it’s just a lot of work. And the administrator of an estate does not have the right to rip off the other heirs.

But unfortunately, sometimes heirs do not trust each other and the probate process can become contentious. Take a hypothetical example. Let’s say a man who married twice passed away, and both spouses have already died. He had children in both marriages. These adult siblings all want their fair share, and they are all entitled to inherit something, but they don’t know the exact numbers of the estate. Nobody wants their half-siblings in charge because they’ve never gotten along and they don’t trust each other.

Maybe one of the heirs will hire an attorney and file a petition to be appointed as an administrator. They will need to serve the petition on all other potential heirs who have an equal right to be an administrator of the estate.

On hearing day, the parties will appear before the Register of Wills and discuss who should be appointed administrator. The heirs all have the opportunity to testify for or against anyone’s petition. Bob might argue that he is an accountant and should be the administrator. Siblings might say Sally is disreputable and has a record of theft and shouldn’t be appointed. It will be up to the judge to decide.

It has happened where there is no obviously better choice and the judge appointed the lawyers of the counterparties as co-administrators. This is a lose-lose scenario. Now the heirs need to pay lawyers out of the estate, and out of their inheritance, to handle the probate process. Lawyers are usually paid hourly, and this becomes very expensive.

Everyone benefits when there’s a will. But when there isn’t one, coming to an agreement in a family dispute saves a lot of money. Remember, administrators are duty-bound by law to follow all the rules and report to all the other heirs any actions that will affect their inheritance. So it behooves the family to open lines of communication and call a ceasefire. Hire a probate attorney to call balls and strikes and help the process go more smoothly, but it serves the estate beneficiaries to take on the administration responsibilities.

However, there are aspects of the probate process where an attorney can be a money saver: negotiating debt.

Advertising the Probate and Paying Off Debts

Once an administrator or executor has testamentary or administration letters, you can begin liquidating the estate and distributing assets.

First, you will need to list all of the assets of the estate in an inventory. You will need to notify beneficiaries and certify that all heirs were given notice. And you will need to advertise the probate so debts can be paid.

Under Pennsylvania state law, you need to publish an advertisement of the probate so creditors can come forward. The ads must be in a general circulation newspaper, such as the Philadelphia Inquirer, and the local legal periodical, which is the Legal Intelligencer in our region. The ads must run once a week for three successive weeks, and creditors have a one-year window to submit claims.

It’s a really good idea to have an attorney before you reach this stage of the process. For one, as mentioned, an incomplete list of heirs could cause problems down the road if someone comes forward with a claim. Two, an attorney can make sure the advertisements are all written correctly and proof is provided where and if needed. And three, attorneys are trained negotiators who can help negotiate down the debt, leaving more for heirs to inherit.

Creditors come forward. Your attorney negotiates with them, you pay them off, and now you have a clean bill of health. You sell a property and put the money into a bank account. Now what? Is it pay-out time? Not so fast!

Only Two Things Are Certain in Life

Before you pay out beneficiaries, you have nine months from the date of death to file a draft inheritance tax return with the State of Pennsylvania. The inheritance tax return is a document that shows the state, more or less, who is getting what.

This can get complicated. Children, extended family, and friends all pay different inheritance tax rates. Nonetheless, once the state accepts the return, you pay the taxes, and finally, you can distribute the remainder of the estate’s assets to the heirs.

You’ll then have to file a final inventory with the state that discloses everything you have done. This piece of paper shows there are no assets left in the estate, all funds have been distributed, the executor or administrator and lawyer have no further responsibilities, and the estate can be closed. Dust off your hands — you’re done.

Clearly, distributing the assets of a loved one after death is complicated. It might be tempting to go it alone in some circumstances, but given the risks of legal challenges, it’s a good idea to hire an attorney — especially someone experienced in the jurisdiction where the person who passed away lived.

If you need help navigating the probate process or liquidating property for a loved one in Southeast Pennsylvania or South Jersey, reach out to me at [email protected].